Kennedy continued:
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.31
Sandra Day O’Connor
Here’s Justice Sandra Day O’Connor lecturing about the importance of international jurisprudence on the Court, especially in the future: “Although international law and the law of other nations are rarely binding upon our decisions in U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”32
She added, “While ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face here.”33 Moreover, Justice O’Connor has referred to international law in one of her books, The Majesty of the Law: Reflections of a Supreme Court Justice.34 In the chapter titled “Broadening our Horizons,” she wrote, “Nevertheless, I think that American judges and lawyers can benefit from broadening our horizons. I know from my experience at the Supreme Court that we often have much to learn from other jurisdictions.”35 She goes on to say, “As the American model of judicial review of legislation spreads further around the globe, I think that we Supreme Court justices will find ourselves looking more frequently to the decisions of other constitutional courts, especially other common-law courts that have struggled with the same basic constitutional questions that we have: equal protection, due process, the Rule of Law in constitutional democracies.”36 O’Connor recently ratcheted up her rhetoric in a speech at Georgetown Law School: “International law is no longer a specialty…. It is vital if judges are to faithfully discharge their duties.”37
John Paul Stevens
In 2002, in Thompson v. Oklahoma, Stevens referred to international standards for the execution of criminals under sixteen years of age:
The conclusion that it would offend civilized standards of decency to execute a person who was less than sixteen years old at the time of his or her offense is consistent with the views at have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community. Thus, the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain and Switzerland. Juvenile executions are also prohibited in the Soviet Union.38
It is as if many of these justices will rely on anything but the Constitution to guide their decision-making. And there’s a reason for this: The Court has so fundamentally altered its duties, and so completely rejected the limits placed on it by the Constitution’s checks and balances and enumeration of powers, that the justices are in an endless search for extra-constitutional justifications and inventions to explain their activism. The power they crave does not exist in the Constitution, which is why they must constantly skirt its provisions.
Reliance on international law is a complete rejection of not only the roles of the other branches, for these are not decisions or laws reflective of their deliberations or actions, but the Constitution itself.
Judicial activists are nothing short of radicals in robes—contemptuous of the rule of law, subverting the Constitution at will, and using their public trust to impose their policy preferences on society. In fact, no radical political movement has been more effective in undermining our system of government than the judiciary. And with each Supreme Court term, we hold our collective breath hoping the justices will do no further damage, knowing full well they will disappoint. Such is the nature of judicial tyranny.
CHAPTER TWO
JUDICIAL REVIEW: THE COUNTER-REVOLUTION OF 1803
“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is…by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
Letter from Thomas Jefferson to Edward Livingston, 18251
So how did America reach the point where the federal judiciary has amassed more influence over more areas of modern life than any other branch of government? From which section of the Constitution were the courts granted the authority to overrule Congress and the president?
The answer is that the Supreme Court has simply taken such power for itself. Nowhere in the Constitution is the federal judiciary expressly given the authority to interject itself into every facet of federal—and state—operation. Federal courts have accumulated their power under the rubric of judicial review. Judicial review involves a court overturning an act of Congress or of the executive branch on the grounds that the act in question contravenes the federal Constitution. It is founded on the principle that courts will be unbiased guardians of the clear meaning of the Constitution.
At the time of the Constitutional Convention in 1787, there were only a handful of instances in which state courts overruled legislatures for violating state constitutions.2 Moreover, state courts did not assume carte blanche authority to rule on any subject. The courts followed British common law. They ruled on criminal law, matters of equity between individuals and businesses, and other legal matters.
Courts also, as a rule, regarded the state constitutions as the central legal nervous system of their respective states. Because the constitution of a state had been adopted by the people (generally through a convention and/or direct popular vote), it was considered by judges to be a higher law than an act of a legislature or a state governor.3
The Virginia Constitution of 1776 even included a statement of principles that “all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”4
There was no mechanism in the Articles of Confederation—the forerunner to the Constitution—for the sort of sweeping judicial authority later assumed by federal courts. The Articles, in fact, did not establish a permanent federal judiciary but relied on state courts to resolve disputes.5
Most delegates at the Constitutional Convention in 1787 thought a federal court system was necessary, that the federal judiciary should be independent of—and not subordinate to—the other branches of government (that principle was affirmed in nearly every state constitution), and that federal judges should serve “during good behavior” or, essentially, for life. These state constitutions aimed to insulate judges from political pressure, but every state constitution explicitly allowed judges to be impeached, as a check on misbehavior. In other words, judges were expected to be accountable to the constitution and the people who approved it.
The first mention of the judiciary in the Virginia Plan—which served as the initial outline for the Constitutional Convention—was to make it part of a “council of revision” that would examine acts of the national legislature and approve or reject them, though Congress could pass a bill over the council’s veto.6
Beyond its role in the council of revision, the Virginia Plan had the federal judiciary consisting of a “supreme tribunal” and inferior tribunals as designated by the legislature. The inferior tribunals would be arbiters of fact, while the supreme tribunal would be the final court of appeal. The jurisdiction for the judiciary was also specific: “[A]ll piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested; or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve national peace and harmony.”7
Within days of the Constitutional Convention beginning its work, on June 4, 1787, the delegates took up the question of the Court’s participation in a council of revision, and there was substantial opposition to it. Few delegates spoke in favor of the concept and there were many questions about the judiciary maintaining its objectivity if it were involved in negating legislative acts.8
The Convention had its most focused exchange on the topic of judicial authority on August 15, 1787. Again taking up the issue of the judicial veto over acts of Congress, the debate began when James Madison:
[M]oved that all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both object, ¾ of each House, should be necessary to overrule the objections and give to the acts the force of law….
[Charles Pinckney, of South Carolina] opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.9
John Dickinson of Delaware argued that judges should not be empowered to overturn acts of the national legislature. Roger Sherman of Connecticut disapproved of judges “meddling in politics and parties.”10
The framers considered and rejected the inclusion of the judiciary in the review process. They did not want judges involved in either the legislative process, with all the political intrigue that would entail, or in reviewing laws they would eventually have to adjudicate. Hugh Williamson, a delegate from North Carolina, noted that he preferred to give the power to the president alone, rather than “admitting the Judges into the business of legislation.”11 Ultimately, the Convention came up with the presidential veto.12
Most important, the framers did not intend to grant general authority to the judiciary to rule on the constitutionality of legislative acts. Madison (who, by August 27, had dropped his initial support for the judiciary being involved in a veto) summed up the Convention’s take on judicial review: “[He] doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”13
In the final analysis, if the framers had wanted to empower the judiciary with a legislative veto, they could have done so. They did not. Instead, the Convention crafted a federal judiciary, like many other provisions in the final Constitution, as a product of compromise. It was a compromise between the interests of the individual states and the need for a federal government that would be strong enough, and flexible enough, to meet the present and future needs of a nation with diverse interests. It was also the clear intention of the framers that no one branch would be subsumed by any other.14
Once the Convention completed its work, the political battle began over the proposed Constitution. The Federalist Papers, authored by Alexander Hamilton, James Madison, and John Jay, were among the first and the best post–Revolutionary War examples of American campaign literature. They are a series of eighty-five essays that began appearing in New York newspapers a little more than a month after the Constitutional Convention ended on September 17, 1787, written to persuade members of Congress and the states to adopt the Constitution. Essays 78 to 83, all written by Hamilton, contain the principal discussions of the nature and authority of the new federal judiciary.
Because there was no federal judiciary in existence at that time, and the principal concern was protecting the judiciary from being subsumed by the seemingly more powerful executive and legislative branches, much of the debate centered on creating an independent judiciary, rather than in limiting the scope and authority of federal judges. It is for this reason that much of Hamilton’s effort in Federalist 78 was dedicated to an explanation of the steps taken by the framers of the new Constitution to ensure that federal judges would be independent and free of control from Congress, the president, the political whims of the day, and the various state governments.
The judiciary did not represent a threat, Hamilton wrote, “so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that there is no liberty, if the power of judging be not separated from the legislative and executive powers.”15
This is exactly what has happened, but in reverse. Instead of being subsumed by Congress or the president, the judiciary has subsumed substantial authority over the other branches.
While other issues garnered most of the attention in the ratification process, there were commentators on both sides of the debate who addressed the nature and potential problems that could develop in the federal judiciary. Unquestionably, spokesmen such as Hamilton, Madison, and Jay were very persuasive as pro-Constitution voices, but there were also forceful opponents of the Constitution who saw the potential abuses.
Robert Yates, an ardent anti-federalist and delegate to the Constitutional Convention from New York, was an especially articulate opponent of the Constitution. In a series of essays published in the New York Journal, which became known as the Anti-federalist Papers, Yates wrote under the name “Brutus.” In essay 11, Yates questioned the powers and pitfalls of the proposed federal judicial system. He warned that:
The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.
The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.
This part of the plan is so modelled, as to authorise the courts, not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions.16
Yates also warned that the Supreme Court would not be constrained by the strict language of the Constitution, regardless of the assurances being offered at that time by the pro-Constitution writers:
They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.17
And once activist judges found themselves freed from the constraints imposed by the Constitution, Yates predicted, there would be no practicable limit to the Court’s reach:
When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly ag
ainst it? and they are authorised to construe its meaning, and are not under any controul?
This power in the judicial, will enable them to mould the government, into almost any shape they please.18
Yates predicted the process by which the federal judiciary would achieve primacy over the state governments and the other branches of the national government:
Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.19
While the Constitution created the silhouette of the national judiciary, it was up to the Congress actually to form it with legislation that would constitute a functional system of federal courts. Congress did this with the Judiciary Acts of 1789 and 1801.
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